Delhi District Court
State vs . Rohit Handa Page No. 1/27 on 18 May, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No.: 02406R002091214
SC No. : 51/14 and 126/16
FIR No. : 177/13
U/s : 417/376/323 IPC
PS : Greater Kailash, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Rohit Handa
S/o Sh. Rakesh Handa
R/o H.No. 67, Lawrence Road,
Amritsar, Punjab. ................... Accused
Date of Institution : 14.03.2014
Judgment reserved for orders on : 18.05.2017
Date of pronouncement : 18.05.2017
J U D G M E N T
FACTS :
1. On 02.06.2013, the prosecutrix (name withheld to protect her identity) gave a complaint in the police station Civil Lines, Gurgaon, Haryana alleging therein that she had met the accused on Facebook. They started talking to each other on Facebook Messenger and BBM. The accused told her that he is into the business of manufacturing and import of ATF and they remain in touch with the marketing persons of MRPL. Due to recession in the market, she was jobless. She asked him to get a job in an FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 1/27 airlines since she was excabin crew. He asked her CV and pictures. They started calling each other on mobiles.
On 20.04.2013, the accused came to Delhi and told her that he has an offer letter of Swiss Airlines as Cabin Crew Manager. He asked her to sign the offer letter. He told her that he has paid Rs.five lacs to Mr Thakur of MRPL for the job. The accused picked her from her house. On the way, he made excuse that Mr Thakur has left by now and they would meet him the next day. He took her for dinner. Next day, he again picked her saying that Mr Thakur has given appointment of 2.00 p.m. He instead took her to Zara showroom to buy a dress for her for a party. They went to JYNXX at Nehru Place where he offered her few drinks. After that, she was not in senses. Next day, when she woke up, she found herself in Oakland hotel room at Nehru Place wearing his shorts. She was shocked. She alleged that everything was done with her and he also took her pictures. When she was looking for her mobile to call her mother, she found it switched off. He snatched her mobile and showed her the pictures clicked by him. When she shouted that he double crossed her and fooled her for the job, he threatened her that if she would tell to anyone, he would MMS her pictures to her family members. He also told her that his father is in ministry and is a powerful man.
She alleged that she stopped meeting and talking to him however he used to call her on her sister's and mother's cells. She did not tell her family members since they knew that he was getting her a job in the airlines. He again contacted her in June. He sent her offer letter of Thai Airways by Mr Johnson saying that she has interview in Bangkok. He told her that he did wrong with her and he would bear all her expenses and get FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 2/27 her a job because he has promised her family members to get her job. He sent her to Bangkok by Jet Airways however he came by Thai Airways. There everyday he made excuse that her interview would be in a day or two. She realized that the accused took her to use her. He extended the stay by another five days by calling his travel agent Savera Travels. He told her that they would not leave Bangkok unless her job work is done. He told her that on looking at her, he could not control his feelings and did sexual intercourse with her. He told her that he belongs to a royal family but does not have happiness. He married at the age of 22 years. The woman whom he married has an affair with Mr Steve in Dubai and he has filed a divorce case.
She alleged that the accused used to deposit money in her account which she used to return in cash and by doing shopping for him. He used to say that Delhi has good stuff for men rather than in Amritsar. His personal courier Amit used to collect his courier from her house. She alleged that the accused told her that he would marry her. On 27.12.2012, he asked her to have holidays with him before they get married. She went with him to Mumbai where she felt that something was wrong. For four days, they stayed in the hotel Novotel Juhu Beach, Mumbai. When she asked him to give his cell, he refused and slapped her. Later he pretended that he was drunk. She alleged that she had seen his wife messaging why have you off your no., u always do the same when we were in delh. She alleged that before she could read more, he deleted the chat and beat her badly. She wanted to go back but he told her that she is misunderstanding him and there is nothing between him and his wife. She heard in the washroom that his plan was to enjoy the new year in Amritsar FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 3/27 although they were supposed to celebrate 31st in Mumbai. He told her that his father is not well and he has to go back. She alleged that the accused called her at 23:30 hrs. that he is at home although he was sounding very drunk and she could hear DJ. Till 4.00 a.m, she kept on calling him. She checked the whatsapp pictures of his wife which were of the party in which the accused was wearing a blazer which she had gifted to him. After three days, she called the driver of the accused who told her that the accused was with his wife and going to Dubai.
She alleged that everyday, the accused used to send her flowers worth Rs.15,00020,000/, followed by wine, chocolates to impress her. When she spoke to him, he asked her to read the email sent to her regarding MOU between his company and the Dubai Refinery company. He also told her that since his wife is still on papers and he has not taken divorce, as per the clauses of MOU, the contract is to be signed by the spouse. He told her that his wife would return on 16 th and he would come on 19th. He asked her to come there during that period. She called him on 15 th night but he told her that because of contract formalities, his wife has extended the stay upto 19th.
She alleged that accused came on 1 st march in Delhi. She did not pick his calls. He stayed at Grand Hyatt hotel. He told her that he is suffering from Diarrhea. She however avoided him. He saw her car at gym on which he kept flowers. When she was sitting in the car, he bent on his knees and asked for a chance. He picked her from her house and took her in Grand Hyatt. Some drink fell on his pant. He asked her to accompany him to the room where he did everything with her. When she asked him to drop her, he beat her till she reached home. In the evening, he made excuse that FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 4/27 his wife has taken a flight from Amritsar to Dubai to meet her boyfriend. He requested for one more chance.
She alleged that the accused had to go to Indonesia for work. He wanted her to accompany him. They went to Jakarta and Bali where everyday he beat her and broke her nails. After reaching Hotel Ramada, Bali, he slapped her nonstop, kicked on her stomach and punched on her knees. He took her cell, wallet and passport and also removed the wires of the landline so as not to allow her to leave from there. She alleged that she with her family went to Golden Temple Amritsar where the accused, to impress her family members, booked rooms in Hotel Clark Inn. Initially, they had plan to stay there for 45 days but they decided to leave after the darshan. She alleged that at reception, he met her. He wanted to be physical. In the car, he did everything with her while driving. He also threatened her. When she threatened him that she would go to NCW, he told her that she cannot do anything against him since his father is in the ministry and he knows that wealth plays an important role in one's life. He started contacting her sisterinlaw. He sent MMS of her nude pictures to her sisterinlaw. They both started making her scandal. Her sisterinlaw was supporting him as she wanted her to be out of the house as she was after the property. Her sister spoke to his father whom he pretended that she was after his money. She alleged that the accused tortured, harassed, blackmailed her and committed sexual intercourse with her forcibly.
INVESTIGATION
2. On her complaint, zero FIR was registered at the police station Civil Lines, Gurgaon. The FIR was forwarded to the Police Station Greater FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 5/27 Kailash, New Delhi since the sexual assault was allegedly committed in Hotel Oakland, on 21.04.2012. The case was registered u/s 376 IPC. The prosecutrix was got medically examined. Her exhibits were collected. Her statement u/s 164 CrPC was got recorded. On 14.10.2013, the accused was formally arrested. He was got medically examined. He was found to be capable of performing sexual intercourse under normal circumstances. His exhibits were collected. The documents from Hotel Oakland were collected. The exhibits were sent to the FSL, Rohini. After the investigation, the accused was sent for trial for the offence punishable u/s 376 IPC.
3. After complying with the requirements contemplated under section 207 CrPC, the case was committed to this Court. CHARGE :
4. Prima facie case was made out vide order dated 11.04.2014 and the charge was framed against the accused for the offences punishable under section u/s 417/376 and 323 IPC. Charge was framed. He pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
5. To substantiate its allegations against the accused, the prosecution examined as many as twelve witnesses.
PW1 Ct Minesh took the prosecutrix to the hospital for her medical examination vide MLC Ex. PW 1/A. She collected the sealed exhibits from the doctor alongwith the sample seal and handed over to the IO vide memo Ex. PW 1/B. PW2 Dr Kiranmeet Saran did the medical examination of the prosecutrix vide MLC Ex. PW FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 6/27 1/A. She recorded the brief history of the incident on the narration of the prosecutrix. She found her hymen not intact. She did not find external injuries on her person.
PW3 Bhupender Singh, Accountant, Hotel Oakland proved the record of the hotel qua the stay of the accused on 21.04.2012 Ex. PW 3/A to Ex. PW 3/H. He stated that as per the record, the accused checked in Room No. 210 on the intervening night of 21/22.04.2012 at about 04.04 a.m and checked out on 22.04.2012 at about 1.17 p.m and he had booked single occupancy room in the hotel. He stated that in case, any person accompanies the guest who has booked the single occupancy room, the hotel claims charges for double occupancy room and as per the hotel record, the hotel did not charge for double occupancy.
PW4 ASI Sanjeev Kumar was posted at P.S Civil Lines, Gurgaon, Haryana on 02.09.2013 when the complaint Ex. PW 4/A was marked to him. He got registered the zero FIR. On 03.09.2013, he got the prosecutrix medically examined in the government hospital at Gurgaon, collected her exhibits and got recorded her statement u/s 164 CrPC. He, on the instructions of the SHO, went to P.S Greater Kailash, New Delhi with the prosecutrix where he handed over FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 7/27 all the documents to SI Pawan Kumar of P.S Greater Kailash.
PW5 HC Dharam Pal recorded the FIR Ex. PW 5/A. PW6 Ct Shibu witnessed the formal arrest of the accused. He took the accused to AIIMS for his medical examination, collected his sealed exhibits and handed over to the IO.
PW7 SI Manisha did the investigation of the case. She formally arrested the accused on 14.10.2013, got him medically examined and collected his sealed exhibits. She collected the record from Hotel Oakland qua the stay of the accused vide memo Ex. PW 3/J. She deposited the exhibits in the FSL vide Road Certificate Ex. PW 7/A. She stated that so long the exhibits remained in her possession, no one tampered with them. She also prepared the chargesheet. On being crossexamined, she stated that she did not enquire from the Manager whether the prosecutrix had come with the accused in the hotel or not.
PW8 Dr Manjul Bijarnia did the medical examination of the accused vide MLC Ex. PW 8/A and found him capable of performing sexual intercourse under normal circumstances.
PW9 Sh. Amardeep Singh, Judicial Magistrate, Haryana recorded the statement of the prosecutrix u/s FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 8/27 164 CrPC Ex PW 9/A. PW10 WSI Narender Kaur partly investigated the case.
PW11 SI Pawan Kumar was the investigating officer of the case. He deposed on the lines of investigation. He on receipt of zero FIR from P.S Civil Lines, Gurgaon, got registered the FIR. He collected the complaint, sealed exhibits, MLC of the prosecutrix and statement of prosecutrix u/s 164 CrPC. He also collected the documents from Hotel Oakland. On 14.10.2013, he was present when the accused was arrested. He got the accused medically examined and collected his exhibits. He admitted that he did not make investigation in respect of other places of occurrence mentioned in the complaint except the hotel Oakland.
PW12 is the prosecutrix. She deposed on the lines of her complaint Ex. PW 4/A. She stated that their last physical relations took place on 14.08.2013. She proved her MLC Ex. PW 1/A and statement u/s 164 CrPC Ex. PW 9/A. On being crossexamined, she stated that she does not remember the mobile number which she had been using in 2012 but it was a blackberry phone. She stated that she was using the number 9958131409 in 2013 however she does not remember if she was using FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 9/27 the same number in 2012. She stated that it may be possible that on 17.06.2012, she had commented on the photo of the wife of the accused on the Facebook mark DA1 and mark DA2. She admitted that she used to talk to Dev Thind frequently and even at late hours. She admitted that she used to talk to Sunny Gambhir frequently and at late hours. She stated that Lalit Rana was her Facebook friend and she also knew Sunil Yadav. She denied that they broke their friendship from her after this case. She stated that she did not hand over the hard copy of her CV and photographs to the IO nor she inquired about the marital status of the accused either telephonically or through Facebook. On being further crossexamined, she admitted that she had made complaint against the accused and his family members vide FIR No. 600/13 P.S Civil Lines, Gurgaon and FIR No. 114/15, P.S Kasana, Gautam Budh Nagar, U.P. She also admitted that the accused and his family members had also made complaint against her and her family members i.e. vide FIR No. 1293/13, P.S Loni, District Ghaziabad, U.P and FIR No. 460/15, P.S Civil Lines Amritsar. She admitted that they have entered into a compromise on 16.01.2017 vide compromise deed Ex. PW 12/DA.
She admitted that she was the Facebook friend FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 10/27 of the accused since 2011 and the accused had posted his photographs and the photographs of his wife on the Facebook on which she had given comments. She stated that she knew from the beginning that the accused was married. She stated that their physical relations were with her consent. She stated that her family members wanted to marry her with some other boy in April, 2013 but by that time, she was emotionally attached to the accused so she refused to marry any one else.
She admitted that Rs.21 lacs were transferred in her account from the account of the accused during the period from 31.08.2012 to 14.06.2013. She also admitted that there was dispute on a plot at Loni and she made the complaint under the pressure of her parents. She stated that she had not seen the offer letter of Swiss Airlines. She stated that she does not remember if she had told the police that on the next day, the accused had taken her for dinner at Ruby Tuesday at City Center Mall, Gurgaon. She stated that she does not remember if she had told the police that the accused had told her that meeting with Mr Thakur would be held at JYNXX at Nehru Place.
She stated that she did not hand over the bill to the IO qua the purchase of a dress from Zara at Select City Mall. She stated that there were more than 50 FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 11/27 persons in JYNXX, Nehru Place where she took three pegs of liqour. She stated that she never became unconscious earlier after taking liqour. She does not know how she was taken to the hotel room from JYNXX since she was not in senses. When she woke up, she felt that physical relations were made and she has said so because the accused should have dropped her at her house and why he took her in the hotel. She stated that she had asked the accused why he had taken her to the hotel and not to her house to which he told that since she was not in senses and it was not proper to drop her at her house. She stated that when she shouted and said that he broke her trust and cheated her, he said that nothing of this sort happened which she was thinking. She stated that the accused never showed her pictures.
She stated that she had made the complaint of the incident of 21.04.2012 on 02.09.2013. She admitted that during that period, she had talked to the accused number of times. She stated that she did not hand over the appointment letter of Thai Airways to the IO nor she is in possession of the same.
She admitted that she did not see the divorce petition and the affidavit and whenever she went with the accused, she went willingly and the accused never forced her to go with him. She stated that she did not FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 12/27 try to verify from the Court nor asked the documents from the accused to know the status of his divorce. She denied that she made the complaint to pressurize the accused to take divorce from his wife and marry her since she was madly in love with him and wanted to marry him by hook or crook. She denied that the accused never promised to marry her and their physical relations were out of love and affection. She stated that her sisterinlaw Arti Bhasin never showed nude pictures to her. She denied that she never stayed with the accused in the hotels at abroad and for that reason she did not hand over the bills/details of her stay in the hotels. She however admitted that whenever the accused made physical relations with her, it were with her consent and the accused never forced upon her and their physical relations continued for about one and a half years. She stated that they used to send messages to each other.
STATEMENT OF ACCUSED U/S 313 CrPC
6. After the prosecution evidence, the statement of accused u/s 313 CrPC was recorded. He admitted that he had met the prosecutrix through Facebook in 2012 and they used to talk through Facebook and Blackberry Messenger. He stated that the prosecutrix had sought his help to get a job who was excabin crew. He denied having asked CV and photograph of the prosecutrix or having taken her to City Center Mall, Gurgaon. He denied all the incriminating evidence against him. He however FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 13/27 admitted that he had deposited money in the account of the prosecutrix however it was not for his daily shoppings but regarding a plot at Loni, Ghaziabad. He denied having gone with the prosecutrix to Mumbai. He stated that he never sent flowers, chocolates etc to the prosecutrix. He stated that in March 2013, he had come with his wife and stayed at Grand Hyatt hotel however he never met the prosecutrix during that period. He stated that the prosecutrix never went with him to Indonesia. He stated that the prosecutrix had come at Amritsar in August, 2013 and stayed there for 4/5 days and he being the good friend of the prosecutrix made their arrangements in Hotel Clark Inn and made payment of their bills. He however admitted that he was medically examined. He stated that there was dispute over a plot of land. He had paid Rs.21 lacs to the prosecutrix by transfer in her bank. When he asked her to repay, since the deal could not mature, she made the false allegations against him. He stated that the prosecutrix loved him and wanted him to take divorce from his wife. He stated that he has good relations with his wife and when he refused to take divorce, the prosecutrix lodged the false complaint against him. She knew that he was married and he never concealed the factum of his marriage. DEFENCE EVIDENCE
7. The accused did not examine any evidence in his defence. ARGUMENTS
8. I have heard the arguments advanced by Sh Vinod Sharma, Ld counsel for the accused and Sh. Mohd. Iqrar, Ld Addl. PP for the State.
9. Ld counsel for the accused vehemently argued that the prosecutrix and the accused had met each other in 2012 through Facebook. They used to talk to each other through Facebook and Blackberry FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 14/27 messengers. The prosecutrix was excabin crew. She was in need of a job. The accused had a business of manufacturing and import of ATF and had contacts with the officials of MRPL. She sought his help to get the job. Ld counsel stated that the prosecutrix and the accused were simply the friends. He never took the prosecutrix to Hotel JYNXX nor committed sexual intercourse with her. He never told the prosecutrix that he is not happy with his wife and has filed divorce. Ld counsel stated that the prosecutrix had inclination towards the accused. She wanted to marry him. She wanted him to take divorce from his wife and when the accused refused, she made the false allegations against the accused. Ld counsel referred the facebook documents and stated that the prosecutrix had made comments on the Facebook about his wife. Ld counsel stated that there was no recovery of any obscene material from the possession or at the instance of the accused nor there is any document to indicate that the prosecutrix had gone with the accused to Mumbai, Dubai, Bangkok or Indonesia. Ld counsel stated that there was dispute over a plot of land. The money transferred in the account was in respect of the land. Ld counsel stated that the accused did not commit any offence and it is a case of false implication of the accused.
10. Ld Addl. PP on the contrary argued that the accused had told the prosecutrix that he has contacts with the officials of MRPL and can help her in getting a job. She was excabin crew. He took her CV and photograph. He on the pretext of introducing her to Mr Thakur for her job as Cabin Crew Manager took her to Hotel Jynxx at Nehru Place, offered her drinks as a result she lost her senses and when she woke up, she found herself in the hotel room where he committed rape upon her. He also clicked her pictures and threatened her to make them public. Ld. Addl. PP FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 15/27 stated that the prosecutrix discontinued her relations but the accused in June, 2012 again contacted her and sent her an appointment letter of Thai Airways. On 10.06.2012, he took her to Thailand to introduce her to Mr Johnson for interview where he established physical relations with her number of times. He also told her that he married at the age of 22 years and has filed a divorce petition. He also promised to marry her after taking divorce from his wife. He took her to Mumbai to celebrate new year telling that before they get married, they would plan holidays. He beat her. Ld Addl. PP stated that on 01.03.2013 the accused stayed at Grand Hyatt hotel. He met the prosecutrix and apologized. He took her in the hotel for dinner. In the room, he committed sexual intercourse with her. He also took her to Indonesia where he made physical relations with her number of times giving her false promise of marriage. He beat her there. He also forwarded her nude pictures to her sisterinlaw Arti Bhasin who made scandal of her. Ld Addl. PP stated that the accused made physical relations with the prosecutrix giving her false promise of marriage and caused hurt to the prosecutrix on various occasions.
FINDINGS :
11. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and gone through the statements of the witnesses and the documents on record.
12. The accused has been charged with the offence of committing sexual intercourse with the prosecutrix giving her false promise of marriage and voluntary causing hurt. As such, before adverting to the merits of rival submissions, a reproduction of the definition of the offences would be necessary and relevant.
FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 16/27
13. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First: Against her will.
Secondly: Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.......
Fifthly..........
Sixthly: With or without her consent, when she is under sixteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.......
14. Section 323 IPC provides punishment for voluntarily causing hurt.
15. The basic question now is whether the prosecutrix ever consented for the sexual intercourse because of her love for the accused or her consent was obtained under misconception of fact.
16. Section 90 of the IPC defines consent. It reads: a consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
17. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance the good and evil on each side. Consent in rape covers states of mind ranging widely from actual desire to reluctant acquiescence. Consent within penal law, defining rape, requires exercise of FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 17/27 intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.
18. In the case of Rao Harnarain Singh Sheoji Singh vs The State, AIR 1958 P H 123, the High court while holding the accused liable for the offence of rape has distinguished between the word 'consent' and 'submissions' as shown below:
(1) A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law.
(2) Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.
(3) Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. (4) Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure. (5) A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 18/27 power to act in a manner she wants. Consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.
19. The expression 'under a misconception of fact' is enough to include a case where the misrepresentation, made by the accused, leads to a misconception of fact in the mind of prosecutrix, who, believing the misrepresentation made to her and presuming, it to be true and correct, forms a misconception of fact that the accused was definitely going to marry her and acting thereupon, she consents to have sexual intercourse with him.
20. In Sujit Ranjan Vs. State 2011 Law Suit (Del) 601, it was held:
"Legal position which can be culled out from the judicial pronouncements referred above is that the consent given by the prosecutrix to have sexual intercourse with whom she is in love, on a promise that he would marry her on a later date, cannot be considered as given under "misconception of fact".
Whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under "misconception of fact" depends on the facts of each case. While considering the question of consent, the Court must consider the evidence before it and the surrounding circumstances before reaching a conclusion. Evidence adduced by the prosecution has to be weighed keeping in mind that the burden is on the prosecution to prove each and every ingredient of the offence. Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception and that FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 19/27 promise made was false to his knowledge. The failure to keep the promise on a future uncertain date may be on account of variety of reasons and could not always amount to "misconception of fact" right from the inception."
21. A bare perusal of the testimony of the prosecutrix / PW12 would show that she was excabin crew. She came in contact with the accused in 2012. They used to chat on facebook and blackberry messengers. On 17.06.2012, she had commented on the photograph of the wife of the accused on the facebook mark DA1 and DA2. Actually. Lucky rohit shes damn gorgeous... Sooo sweet.. U guys look incomplete widout each other.. She knew since beginning that the accused was married. The prosecutrix / PW12 also used to talk to her friends namely Dev Thind, Sunny Gambhir, Lalit Rana and Sunil Yadav frequently at night.
22. PW12 / prosecutrix has stated that she had asked the accused to get a job for her. He promised to help her. She gave him her CV and photograph. On 20.04.2012, he came from Amritsar to Delhi and asked her to sign an offer letter of Swiss Airlines as a cabin crew manager and said that he has paid Rs.five lacs to Mr. Thakur of MRPL for the job. She stated that the accused again contacted her in June 2012 and sent her appointment letter of Thai airways issued by Mr. Johnson, sent her tickets for the Bangkok and on 10.06.2012, she went to Bangkok. She stated that in June 2013, she went with the accused to Indonesia where at Jakarta, he beat her, kicked on her stomach and caused her bruises. In the instant case, no investigation was made from Mr. Thakur whether he was given CV or the photographs of the prosecutrix / PW12 or whether he knew the accused or not. The investigating officer did FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 20/27 not collect the appointment letter allegedly sent nor verified the air tickets and the passport of the accused and the prosecutrix if on 10.06.2012, the prosecutrix and the accused had gone to Bangkok. The investigating officer did not verify if the prosecutrix had gone to Indonesia with the accused and stayed with him.
23. PW12 / prosecutrix has stated that in Bangkok, the accused told her that on looking at her, he could not control his emotions, he married at the age 22 years with a girl not of his choice, she was after his money and he has filed a case for divorce. As evident from her testimony, she never verified the status of divorce from the Court nor she asked the accused to show the documents of the same. She fully knew that his wife has been living with the accused. Even then, she went with the accused to Bangkok and Indonesia, stayed with him and made physical relations with him. She also went with the accused to Mumbai to celebrate new year.
24. It is not the case that the accused made physical relations with her once or twice rather their relations continued for 1½ years. She was well educated, matured enough and had adequate intelligence to understand the significance and morality associated with the acts she was consenting to. It was an act of promiscuity on her part and not an act induced by misconception of fact.
25. In the case of Rohit Chauhan vs. State NCT of Delhi, 2013, Bail application no. 311/2013 dated 22.05.2013, it was observed:
"There may be cases where both persons out of their own will and choice develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship but when the relationship breaks due to one or the other reason, the woman uses the law as a weapon for vengeance and personal vendetta."
FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 21/27
26. It would be relevant to refer the case of Prashant Bharti vs State Of Nct Of Delhi, Crl. Appeal No. 175 of 2013, wherein it was observed: "Obviously, an inducement for marriage is understandable if the same is made to an unmarried person. The judgment and decree dated 23.9.2008 reveals, that the complainant/prosecutrix was married to Lalji Porwal on 14.6.2003. It also reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two divorced one another by mutual consent under Section 13B of the Hindu Marriage Act. In her supplementary statement dated 21.2.2007, the complainant/ prosecutrix accused Prashant Bhati of having had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007 at his residence, on the basis of a false promise to marry her. It is apparent from irrefutable evidence, that during the dates under reference and for a period of more than one year and eight months thereafter, she had remained married to Lalji Porwal. In such a fact situation, the assertion made by the complainant/ prosecutrix, that the appellant accused had physical relations with her, on the assurance that he would marry her, is per se false and as such, unacceptable. She, more than anybody else, was clearly aware of the fact that she had a subsisting valid marriage with Lalji Porwal. Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage."
27. PW1 has stated that on 21.04.2012, the accused picked her from her house for the meeting with Mr. Thakur. He then made an excuse that meeting would be held late in the evening at JYNX Nehru Place. He took her to JYNX and offered her drinks. After taking drinks, she was not in her senses. When she came into senses, she realized that she was in Oakland hotel room. She felt that she was raped. She cried and shouted on the accused. He told her that he has clicked her pictures. She wanted to call her FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 22/27 mother but he threatened her that he would broadcast her pictures to her family members. PW3, Accountant of the Hotel Oakland has stated that on 21.04.2012, the accused had checked in room no. 210 at 4.04 a.m. and checked out on 22.04.2012 at 1:17 p.m. He had booked single occupancy room. He stated that in case any person accompanies the guest, the hotel charges for double occupancy room and as per the record, the hotel did not charge for double occupancy. In her crossexamination, the prosecutrix / PW12 has stated that when she asked the accused why he brought her in the hotel and not dropped her at her house, he told her that since she was not in sense, it was not proper to drop her at her house and when she shouted, he told her that nothing of this sort happened which she has been thinking. She also admitted that the accused never showed her the pictures till date. It goes to show that she was not sure whether the accused had committed sexual intercourse with her. For the sake of arguments if it is assumed that the accused committed sexual intercourse with her, why she not made report to the police. Testimony of PW12 shows that even thereafter, they continued meeting and talking. She has also admitted that their friendship was with her consent and the physical relations which they made were with her consent which continued for about 1½ years. She has stated that she was emotionally attached to the accused and they had sexual relations. She has stated that she willingly went to the places with the accused and the accused never forced her to go there.
28. PW12 has stated that the accused had contacted her sisterin law and sent her MMS of her nude pictures. They started making scandal of her. She then improved her version and stated that her sisterinlaw never saw nude pictures of her. In the instant case, there is no recovery of any FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 23/27 obscene photographs / video of the prosecutrix from the possession or at the instance of the accused. The Investigating officer did not collect the CDR in respect of the mobile numbers, the prosecutrix and the accused had been using.
29. PW12 has stated that during the period from 21.08.2012 to 24.06.2014, Rs.21 lacs were transferred in her account from the account of the accused. She has also admitted that there was dispute on a plot of land and she had made the complaint under the pressure of her parents. It is pertinent to mention that the prosecutrix made several complaints against the accused and his family members at the police station civil lines, Gurgaon and police station Kasana, Gautam Budh Nagar, UP and the accused and his family members also made complaints against her and her family members at the police station Loni, Ghaziabad and police station civil lines, Amritsar making allegations and counter allegations. Testimony of prosecutrix / PW12 also shows that they compromised the above cases.
30. In the instant case, there was delay in lodging the FIR. The first incident of sexual intercourse allegedly happened on 21.04.2012 but the prosecutrix made the complaint on 02.06.2013. In the case of State of Karnataka vs. Mapilla P.P. Soopi AIR 2004 SC 83, it was held that undue delay in lodging the complaint, without substantive evidence contributes to the doubt in the prosecution case. In the case of Vijayan vs. State of Kerala (2008) 14 SCC 763, the incident took place seven months prior to the date of lodging of complaint. No complaint or grievance was made either to the police or to the parents prior thereto. It was held that in cases where sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 24/27 months for filing FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supportive evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape.
31. In the instant case, different versions have come from the mouth of the prosecutrix. Inconsistencies and discrepancies have appeared. Further, there are improvements in her testimony. It also suffers from infirmities. In these circumstances, testimony of the prosecutrix cannot be said to be sterling quality. I get support from the case of Kalyan and ors. vs. State of UP, 2001, Crl. L J. 4677 and Narender Kumar Vs. State, (2012) 7 SCC 171.
CONCLUSION:
32. Facts and circumstances of the presence case show that both the prosecutrix and the accused were well educated. The accused was already married with his spouse living with him. The prosecutrix had met the accused on the facebook. They used to meet each other. Their relations continued for 1½ years. During their relations, they made physical relations. The prosecutrix since inception knew that the accused was married. She never tried to find out from the Court about the status of the divorce of the accused before entering into physical relations with him. She was quite mature to understand what was happening between the two. Her consent for the physical relations was an act of her conscious decision. It was held in the case of Rohit Tiwari Vs. State Crl 928/2015 dated 24.05.2016 that if a fully grown up lady consents to the act of sexual intercourse on a promise to marry and continues to indulge in such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of facts.
FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 25/27
33. In the case of Narender Kumar Vs. State of NCT Of Delhi AIR, 2012 SC 2281, it was observed: "The Courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts.
34. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration"
35. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it was held :
"Realities or Truth apart, the fundamental and basic FIR No. : 177/13 PS : Greater Kailash State Vs. Rohit Handa Page No. 26/27 presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record".
36. In the light of above discussions and findings, I am of the view that prosecution has failed to prove its case against the accused. I, therefore, acquit the accused Rohit Handa of the offences punishable under section 417/376 and 323, IPC. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs.50,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.
37. File be consigned to the Record Room.
Announced in the open
court today i.e. 18.05.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 177/13
PS : Greater Kailash
State Vs. Rohit Handa Page No. 27/27